HMYN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 4046

HMYN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4046 (5 December 2023)

Division:                  GENERAL DIVISION

File Number:          2023/6976

Re:HMYN

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:5 December 2023

Place:Sydney

The reviewable decision is set aside and in substitution it is decided that there is another reason why the mandatory visa cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

....................................[sgd]....................................

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation – Applicant failed to pass the character test due to a substantial criminal record – whether there is another reason why the original decision should be revoked – protection of the Australian community – family violence – strength, nature and ties to Australia – expectations of the Australian community – other considerations – decision set aside.

LEGISLATION

Crimes (Sentencing Procedure) Act 1999 No. 92 (NSW)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154

Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524

Pavey and Minister for Home Affairs [2019] AATA 4198

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

5 December 2023

INTRODUCTION

1. The Applicant was born in Fiji in 1970 and is a citizen of that country. He has lived in Australia since 2000. He suffers from a mental illness, schizo-affective disorder, which was diagnosed by a forensic psychiatrist in August 2022 after he had been in custody for three months. He was treated with appropriate medication which was changed when he entered immigration detention in April 2023 to address adverse side effects. He had previously been diagnosed with Post Traumatic Stress Disorder (PTSD) in 2017 and bipolar disorder and schizophrenia in 2018.

2. His mental illness causes the Applicant to suffer episodic psychosis involving persecutory and referential delusions as well as auditory hallucinations, which included delusional ideas about people of Indian background and related feelings of aggression that were central to his offending between 2018 and 2022 against people of Indian background. He has not heard any voices since the change of medication after he was taken into immigration detention in April 2023. He first offended in 2015 against a cousin with whom he was staying, when he was heavily intoxicated. He has a history of substance abuse.

3. The Applicant suffers from Hepatitis B and was recently diagnosed with colorectal cancer for which he is receiving chemotherapy and radiotherapy.

4. The Applicant has been convicted of the following offences: six counts of Common assault – T2, five counts of Stalk/intimidate intend fear physical etc. harm (personal) – T2, two counts of Behave in offensive manner in/near public place/school and one count each of Use offensive language in/near public place/school and Fail to comply with any other wear face covering directive. 

5. He was sentenced to a section 10 bond for one year for each of the two offences he committed in 2015, Destroy or damage property and Assault occasioning actual bodily harm (DV) – T2, which means that he was found guilty of the offence but a conviction was not recorded[1] (the 2015 offences).   

   [1] Crimes (Sentencing Procedure) Act 1999 No. 92 (NSW) (CSP Act) (at the date of sentence).

6. On 7 October 2021 the Applicant was sentenced to 12 months imprisonment to be served by way of an Intensive Correction Order in the community (aggregate) (ICO) for three counts of Common assault – T2 and three counts of Stalk/intimidate intend fear physical etc. harm (personal) – T2.  On the same day he was convicted of Fail to comply with any other wear face covering directive with no other penalty.[2] The offences had been committed on 6 September 2021, 20 September 2021, and 29 September 2021 (the 2021 offences).

   [2] Ibid section 10A (at the date of sentence).

7. On 19 April 2022 the Applicant was charged with the one count of Stalk/intimidate intend fear physical etc. harm (personal) – T2. On 17 May 2022 the ICO was revoked with effect from 19 April 2022 because the Applicant had breached it by committing an offence. I infer that he had been taken into custody on 19 April 2022. He was ordered to serve the remaining term of his 12 month sentence of imprisonment in custody.

8. On 2 June 2022, the Applicant's Class WA Subclass 010 Bridging A visa (the bridging visa) was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because he had been sentenced to 12 months imprisonment and therefore did not satisfy the ‘character test’ because he had a 'substantial criminal record': subsections 501(6)(a) and 501(7)(c) of the Act (the cancellation decision).

9. The bridging visa had been granted on 15 January 2018 because the Applicant was awaiting a merits review hearing before the Tribunal of his protection visa application.

10. The Applicant applied for the revocation of the cancellation decision. 

11. On 19 April 2023 the Applicant was convicted of two counts of Stalk/intimidate intend fear physical etc. harm (personal) – T2 for offences committed on 23 October 2021 and 19 April 2022 and one count of Common assault – T2 committed on 16 April 2022, with no other penalty pursuant to section 10A of the CSP Act. Those offences will be referred to as the 2021/22 offences.  A two year apprehended violence order was also issued in respect of the woman against whom he had offended on the two occasions. It ends in April 2025.

12. On 20 April 2023, the Applicant was released from custody and taken into immigration detention, where he remains.

13. On 12 September 2023, the delegate of the Minister decided not to revoke the mandatory cancellation decision. The Applicant applied to the Tribunal to review that decision on 22 September 2023.

    THE ISSUES

14. As the Applicant does not satisfy the character test, the only issue is whether there is another reason why the cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).

    DIRECTION 99

15. Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa.

16. Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although ‘other considerations’ should not necessarily be treated as secondary in all cases.[3]

    [3] Paragraph 7(1)-(2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32].

17. I will address each of the primary and other considerations that arise for consideration in this case.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community

18. When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been law abiding, will respect important institutions, and not cause or threaten to harm individuals or the Australian community.[4]

    [4] Direction 99, paragraph 8.1(1).

19. There are two factors in relation to the protection of the Australian community:

    (a)The nature and seriousness of the non-citizen’s conduct to date; and

    (b)The risk to the Australian community, should the non-citizen commit further offences.

    The nature and seriousness of the non-citizen’s conduct to date

20. Before the Applicant’s convictions in respect of which the ICO was imposed on 7 October 2021, he had been sentenced to a 12 month Community Correction Order (CCO) on 8 March 2019 for two Common assault – T2 offences which he had committed on 31 October 2018 and 4 December 2018. On the same day he was fined $110 for two counts of Behave in offensive manner in/near public place/school committed on 31 October 2018, and one count of Use offensive language in/near public place/school committed on 4 December 2018 (the 2018 offences).   

21. Between 2018 and 2022, the Applicant committed offences involving offensive, abusive, threatening comments, yelling, waving his arms, and spitting. The victims were people of Indian/Nepalese appearance. The offending was frequent. The cumulative effect of the repeated offending increases its seriousness. There was no apparent trend of increasing seriousness in the nature of the offences.

22. The Respondent submitted that the sentence of 12 months imprisonment in relation to the 2021 offences (initially to be served by way of ICO) indicates the objective seriousness of the offending: paragraph 8.1.1(1)(c) of Direction 99. Where a court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the objective seriousness of the offences involved: see for example, Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].

23. The Respondent quoted the following from the magistrate’s sentencing remarks in relation to the 2021 offending resulting in the ICO being imposed:

    I consider that whilst I do take into account (the Applicant’s) mental illness, I consider that in these matters he has crossed the threshold. These are innocent people going about their business and he poses a serious threat to them by making the kind of remarks that he does and threatening to throw things at them in the like. So, I consider that he has crossed the threshold and that nothing other than a sentence of imprisonment is appropriate in the circumstances. I am going to allow him to serve that sentence, however, by way of an intensive corrections order for a period of 12 months. I do this because it is in the community's interests that he continues to get the treatment that he needs, but he also by the same token needs to understand how serious his offending is, and that if he is to keep this kind of offending up it is likely that the ICO will be revoked, and he will go into custody for the 12 months that I impose. 

24. The Respondent went on to submit that the Applicant’s 2018 and 2022 offences are ‘similarly serious’ to the 2021 offences ‘despite the imposition of lighter punishments’.   

25. The sentences imposed for the 2018 and 2021/22 offences were not sentences of imprisonment. This submission is inconsistent with the Respondent’s submission that referred to Pavey.

26. A sentence is imposed taking into account numerous factors, including the aggravating and mitigating factors and any other objective and subjective factors that affect the relative seriousness of the offence (CSP Act Part 3 generally, and section 21A(1)). The resulting sentence reflects that consideration. 

27. To understand why the sentences for the 2018 and 2021/22 offences were imposed, it is necessary to read the sentencing remarks of the magistrate. Unfortunately, the sentencing remarks of the magistrate in relation to the 2018 offences were not in evidence. However, the sentence was a CCO, not a term of imprisonment.  

28. The sentencing magistrate in relation to the 2021/22 offences said explicitly that the Applicant did not deserve a period of imprisonment.   

29. As I understand his Honour’s remarks, that was because of the Applicant’s mental illness, that he had served 12 months in prison where he had been treated and was being taken into immigration detention immediately upon resolution of the matter. I take into account that the Applicant’s legal representative before the magistrate described the Applicant’s behaviour as ‘absolutely abhorrent and … something this Court would be gravely concerned about’.

30. The Applicant had committed offences against one Indian woman on two different occasions. He verbally abused and intimidated her. On the first occasion she suffered a panic attack while reporting the incident at the police station. In a third incident, when that woman was present, the Applicant spat on her eight year old sister.

31. The Respondent submitted that the racial nature of the Applicant’s crimes renders them more serious because they were public acts that could incite hatred towards a group of people who have a particular characteristic, such as race; intimidatory behaviour or behaviour that represents a danger to the Australian community: paragraph 4(2) of Direction 99. They are examples of serious conduct of concern that does not constitute any criminal offence set out in Direction 99 at [4(2)]. 

32. The Applicant’s offences were dealt with according to the criminal law. The police fact sheets and available sentencing remarks clearly refer to and take into account the racial and intimidatory elements of the offences. It would be ‘double counting’ and not in accordance with Direction 99 to consider this matter further.

33. The Applicant contended that he had not been appropriately diagnosed and treated until 2022 when he was in custody. During the relevant period his mental illness adversely impacted his capacity for rational judgment which contributed significantly to his offending and his failure to comply with his court ordered treatment regime. Those difficulties were compounded by an inability to attend face-to-face appointments and a lack of supports during the COVID-19 pandemic. Since his diagnosis in 2022 and appropriate treatment, his schizo-affective disorder had stabilised since at least May 2023. The Applicant has developed insight and recognises that his hallucinations and negative attitudes towards people of Indian/Nepalese appearance are a product of his mental illness. His progress towards rehabilitation mitigates the seriousness of his past offending in terms of his personal culpability.

34. The Respondent contended the Applicant’s repeated offending demonstrates an inability to distinguish right from wrong, which may have catastrophic consequences.

35. The Applicant’s contentions are to be preferred. The offending from 2018 to 2022 has been because of his mental illness. Subsequently, he has been diagnosed with schizo-affective disorder and been treated effectively. He has demonstrated insight to the extent that he understands that.

36. His offending has been serious, however it has not been because he cannot distinguish right from wrong. When he is well he does not offend.

37. The 2015 offences were of a different nature to his 2018 to 2022 offending. It was an isolated incident of family violence as defined in section 4(1) of Direction 99 committed eight years ago. The Applicant was heavily intoxicated. He arrived back at his cousin’s residence at about 4:30am and turned on a stereo and played music very loudly. His cousin turned it off. The Applicant verbally abused and physically struck his cousin. He accepted responsibility for the incident and was very remorseful. He was found guilty but not convicted of those offences. Family violence is viewed very seriously by the Australian Government and the Australian community regardless of whether there has been a conviction or a sentence imposed.

    The risk to the Australian community should the Applicant reoffend

38. The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. This is not a case where the harm that would be caused if it were repeated is so serious that any risk that it may be repeated is unacceptable.

39. Should the Applicant reoffend, innocent people will be verbally abused, threatened and intimidated and possibly physically harmed.

40. The Applicant has a documented history of self-ceasing his medication and becoming lost to care, often in the context of increased illicit substance use in the community. Dr Antonio Simonelli, Consultant Forensic Psychiatrist, explained that, typically, substance abuse is a form of self-medication which has an immediate positive effect. It is a temptation that is always there.

41. Since about February 2017, the Applicant has had support from various organisations and individuals within those organisations, for example, STARTTS (NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors), Red Cross, Rough Edges Café, a community service, a police officer, and Matthew Talbot hostel where a psychiatrist attends for treatment but not assessment. He has been an inpatient at two different mental health facilities and has had contact with community mental health teams. He will have the continuing support of his counsellor at STARTTS, and from support workers at Rough Edges who will assist him with accessing counselling, medical services, accommodation, and meal support. His friend of 22 years will support him, including providing accommodation. There is not a lot of financial support for the Applicant. A support worker from Rough Edges is managing funds from his tax return that he uses to cover his telephone costs. I give little weight to his claim that he can text family members for help because there was no persuasive corroborative evidence that he has family members who are willing to help him.

42. He does now have insight into the fact that his mental illness causes his offending. This insight has increased between 20 April 2022 when Dr Jacob Yuide, Advanced Trainee in Forensic Psychiatry assessed the Applicant, and November 2023 when Dr Antonio Simonelli prepared his report. This is explained by the diagnosis of schizo-affective disorder and appropriate treatment while he was in custody in 2022.   

43. Dr Simonelli explained that the Applicant has ‘partial insight’:

    Insight into mental illness refers to an individual's awareness and understanding of their own mental health condition. Levels of insight can vary, and they are often categorized into different stages. I would place (the Applicant) at “partial insight”. Individuals with partial insight acknowledge the presence of a mental health issue. However, their understanding of the condition may be incomplete or distorted. They may recognize the need for some treatment but may not fully understand the nature of their illness. This is in contrast to individuals with “good Insight”, who are seen to have a clear and accurate understanding of their mental health condition. They acknowledge the presence of symptoms, their impact on daily functioning, and the need for treatment.

    It's important to note that insight can fluctuate over time and may be influenced by factors such as the severity of symptoms, treatment effectiveness, and the individual's overall well-being.

44. Dr Simonelli identified six factors influencing commitment to treatment. He concluded:

    In summary, (the Applicant’s) commitment to treatment is a complex interplay of cultural, social, and personal factors. A holistic and culturally sensitive approach that considers these factors can contribute to his overall well-being and management of schizophrenia. Collaborative efforts involving mental health professionals, family, and the community are essential to support him on his treatment journey. (Emphasis added.)

1. The Applicant has expressed his commitment to continuing to engage with effective treatment and to returning to employment.  He has a good work ethic when he is well.

2. Having received a diagnosis and appropriate treatment in 2022 that has prevented any recurrence of his criminal behaviour during his incarceration and immigration detention, both controlled environments, the question is whether he can sustain his adherence to his medication regime and contacts with appropriate carers and support services in the community. That is untested.  Dr Simonelli said that a good basic principle is past conduct is a good guide to future conduct.

3. The evidence does not suggest that the Applicant has taken any steps in terms of rehabilitation for substance abuse. This is concerning given his history of ceasing his medication and being lost to care in the context of increased illicit substance abuse. Dr Simonelli stated that he will need to engage in some form of treatment program once returned to the community. The Applicant said that he knows that drugs and alcohol are not good for him because it just gives him a short high and the rest of the time he is down.  He will stay away from that as long as he can.

4. The consideration protection of the Australian community weighs against revocation.

   Family violence committed by the Applicant

5. The Government has serious concerns about conferring on a non-citizen who has engaged in family violence the privilege of remaining Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in.

6. The 2015 offences committed against the Applicant’s cousin with whom he was residing was an isolated incident of family violence. It occurred because the Applicant was heavily intoxicated. It was of a different nature to the Applicant’s other offending. He was very remorseful for his conduct and accepted responsibility for it. He understands the impact this incident had on his cousin because his cousin cut off contact with him. The Applicant has not engaged in any treatment for substance abuse although his evidence suggested that he moved away from alcohol to cannabis and amphetamine.  

7. This consideration weighs against revocation.

   Strength, nature and ties to Australia

8. The Applicant has been in Australia since 2000. He did not spend his formative years here.

9. He has strong ties to a number of support workers through volunteering at the Rough Edges community centre where he assisted others since at least 2017. One of those support workers gave oral as well as written evidence. At some time during the period of the Applicant’s offending from 2018 to 2022, she and a police officer had tried to get assistance for the Applicant from a mental health facility but the appropriate assistance did not eventuate.

10. The Applicant did have strong family ties with his extended family in Australia after he arrived.  He provided care to aunts and uncles between 2001 to 2003, 2003 and 2009 and from 2012 to 2013. He became homeless after the death of his aunt he was looking after.  His homelessness seems to have coincided with the beginning of his mental health battles.

11. His one long term relationship was in Perth. It lasted for about three years from 2009 to 2012.  

12. He has a friend of 22 years who is prepared to assist him, including providing accommodation. 

13. The Applicant has engaged in kitchen hand work at various times.

14. This consideration weighs in favour of revocation.

    Expectations of the Australian community

15. The Applicant has engaged repeatedly in serious conduct in breach of the Australian community’s expectation that non-citizens obey Australian laws while in Australia and that the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[5] This expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[6]

    [5] Direction 99, paragraph 8.5(1).

    [6] Direction 99, paragraph 8.5(3).

16. It is not for a decision-maker to make an assessment of the community’s expectations.[7] The Tribunal must have due regard to the deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.[8] The decision-maker determines the appropriate weight to be given to this consideration.[9]

    [7] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]-[67] (Charlesworth J) and at [104] (Stewart J) and Direction 99, paragraph 8.5(4).

    [8] FYBR at [75] per Charlesworth J.

    [9] Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 at [72].

17. The Applicant’s criminal history includes family violence offences during one incident in 2015 and then multiple offences of threatening verbal abuse, intimidating conduct and spitting from 2018 to 2022 when he was finally imprisoned when he breached an ICO.  

18. The expectations of the Australian community weigh against revocation of the bridging visa cancellation.

    Other considerations

    Legal consequences of the decision

19. The Applicant applied for a protection visa on 18 July 2000, based on the political coup that had occurred in Fiji. He did not then disclose that he was a homosexual. The Application was refused but subsequently, it was found that he had been incorrectly notified of the refusal decision. He was correctly notified of the refusal decision on 10 November 2015.  He applied to the Tribunal for review of that decision. After a hearing, the Tribunal affirmed the refusal decision. On appeal to the Federal Circuit Court of Australia, the Respondent conceded that the Tribunal had committed a jurisdictional error and the matter was remitted to the Tribunal for reconsideration. On 15 January 2018, the Applicant was granted the bridging visa the subject of this review.

20. On 21 April 2023 the Tribunal remitted the matter to the Department for reconsideration with the direction that the Applicant satisfies the criterion in clause 866.221(2) of Schedule 2 of the Migration Regulations 1994 (Cth). That is, that the applicant for the visa is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugees Convention). Therefore criterion 36(2)(a) of the Act has been satisfied, he is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

21. The parties agree that the Applicant will not be removed from Australia while his protection visa application is on foot. The question arose whether the Applicant is a Non-citizen covered by a protection finding (paragraph 9.1.1 of Direction 99) or a Non-citizen not covered by a protection finding (paragraph 9.1.2 of Direction 99).

22. At [58] of the Applicant’s Statement of Facts, Issues and Contentions, the Applicant referred to the Tribunal’s finding that the Applicant is a person to whom Australia owes protection obligations. That is not a term used in paragraph 9.1 of Direction 99. The term used in that paragraph is non-refoulement obligation.  At [59], the Applicant referred to the ‘protection finding’.

23. Paragraph 9.1.1 is concerned with whether a protection finding has been made (as defined in section 197C of the Act) which indicates that non-refoulement obligations are engaged in relation to the non-citizen.

24. The Respondent contended that there had been no such finding because none of the definitions of protection finding set out in each of subsections (4), (5), (6) and (7) of section 197C of the Act, has been satisfied.

25. Section 197C(3) provides, relevantly:

    Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:

    (a)The non-citizen has made a valid application for a protection visa that has been finally determined; and

    (b)In the course of considering the application, a protection finding within the     meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether nor not the visa was refused or was granted and has since been cancelled).

26. The Applicant’s contention that paragraph 9.1.1 applies fails because the Applicant’s application for a protection visa has not been finally determined, contrary to subsection 197C(3)(a) of the Act. The Applicant agreed that he cannot be removed until that application has been determined.

27. Consistent with that conclusion, there has been no other finding made, including expressed or implied where relevant, that would enable the Applicant to satisfy any of subsections 197C(4), (5), (6) or (7). No protection finding has been made with respect to the Applicant as defined in section 197C of the Act.

28. The Applicant’s application for a protection visa not having been finally determined, and/or in the alternative, there has been no protection finding made as defined, the applicable paragraph of Direction 99 is 9.1.2. However, on its face, paragraph 9.1.2(2) of Direction 99 does not consider a situation such as this case where an application for a protection visa has been made but not been finally determined and the Applicant’s protection claims have been assessed as required by section 36A of the Act.

29. Paragraph 9.1.1(2) begins … where it is open to the non-citizen to apply for a protection visa… and later states: Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

30. The Tribunal has assessed the protection claims as required by section 36A of the Act before the character and security concerns, which are currently being considered. That is demonstrated by the Invitation to comment on information for a protection visa dated 14 November 2023, seeking comment on information that is relevant to satisfying subsection 36(1C)(b) of the Act, that is:

    Having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.

31. I must comply with Direction 99 (section 499(2A of the Act). As there has been an assessment of the Applicant’s protection claims as required by section 36A of the Act, it is not open to me to defer considering those claims. As there has been assessment, I take that assessment into account:

    94.  The Tribunal is satisfied that the applicant fears being persecuted for reasons of his membership of a particular social group, being a homosexual man, a person with a mental health condition and a person with a stigmatised blood-borne disease, as well as combinations of each of these particular social groups. The Tribunal considers that the various social groups to which the applicant belongs intersect with each other and are likely to exacerbate the problems which the applicant will experience upon return to Fiji. The Tribunal finds that the applicant’s experiences over the past few years have demonstrated that he is now a particularly vulnerable person who is susceptible to multiple overlapping forms of harm and who requires a cohesive support network, one which the Tribunal considers would not be available to him in Fiji as a result of the various concerns set out above. Given these concerns, I also find that effective state protection would not be available to the applicant. I am also satisfied that the persecution relates to all areas of Fiji.

    95. The Tribunal accepts that on the basis of the above findings, when the applicant’s membership of the particular social groups he belongs to are considered cumulatively, there is a real chance that he will be exposed to persecution if he returns to Fiji. The Tribunal finds that there is a real chance that such persecution on the basis of being a homosexual man with mental illnesses and a stigmatised blood-borne disease, may manifest in a number of ways, not the least of which is the applicant being ostracised by his family or community and being unable to find work or accommodation and therefore being denied the healthcare services which he requires for his mental health or to survive. The Tribunal is satisfied that the cumulative effect of each of these factors would threaten the applicant’s capacity to subsist in Fiji and that this satisfies the definition of serious harm.

    …

    96. The Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in cl 866.221(2).

32. That is, as stated earlier, the applicant for the visa is a person to whom Australia has protection obligations under the Refugees Convention.

33. I note that the Tribunal was unaware that the Applicant has been diagnosed with cancer and is receiving treatment. The Applicant did not address this condition in terms of protection obligations because the view was taken that a protection finding had been made.

34. The Applicant contended that if the reviewable decision is affirmed:

    ·the Applicant will remain in immigration detention for an indefinite period until such time as the protection visa application is decided which is highly likely to adversely impact on his improving mental health and recovery from cancer.

    ·He would lose any opportunity to demonstrate his rehabilitation in support of his character for the purpose of the assessment of his protection visa application.

35. I am not persuaded as to the first point. The Applicant is receiving appropriate and regular treatment for his mental and physical health conditions. He is in an environment where he is not abusing substances and is taking his medications as required. He is stable, which he was not while he was in the community. I have taken into account Dr Simonelli’s opinion that being in immigration detention is adverse to the Applicant’s mental health, however the evidence to date does not support that conclusion. In that circumstance, it is unnecessary to address the Applicant’s submission in relation to distinguishing indefinite detention in the broad and narrow senses as distilled from the authorities.

36. The second point is persuasive. Being in the community will test whether the Applicant has developed insight into his mental health condition and whether he will be able to maintain his medication regime and treatments for his various conditions and contact with his support services and people and not reoffend. This will be an opportunity for the Applicant to demonstrate that he has developed insight and a capacity to manage his mental health and not reoffend which would assist his prospects of being granted a protection visa.  It will be up to him.

37. In the circumstances of this case, the High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 does not apply because the consequence of a non-revocation decision will not be the potential removal of the Applicant to Fiji. He will continue to be detained in immigration detention until the determination of his application for a protection visa. If the protection visa determination is made before this decision is published, it will determine the Applicant’s future and the possible application of NZYQ.

38. The consideration Legal consequences of the decision under section 501CA weighs in favour of revocation.

    Extent of impediments if removed from Australia

39. As the decision in this case will not result in the possibility of the Applicant returning to Fiji, the consideration Extent of impediments if removed from Australia does not arise for consideration.

    CONCLUSION

40. The primary considerations protection of the Australian community, family violence committed by the non-citizen and expectations of the Australian community weigh in favour of not revoking the mandatory cancellation of the bridging visa.

41. The primary consideration the strength, nature and duration of ties to Australia and the other consideration legal consequences of the decision weigh in favour of revoking the cancellation of the bridging visa.

42. In circumstances where the bridging visa would only be relevant to the Applicant’s visa status until his protection visa is determined, I have concluded that the latter two considerations outweigh the former. Having received the appropriate diagnosis and medication regime, the Applicant should be given the opportunity to demonstrate that he can maintain his medication regime and contact with appropriate carers and support services in the community and not reoffend. He will also have the opportunity to engage in appropriate treatment for substance abuse.

    DECISION

43. The reviewable decision is set aside and in substitution it is decided that there is another reason why the mandatory visa cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[sgd].......................................

Associate

Dated: 5 December 2023

Date of hearing:	21 November 2023
Counsel for the Applicant:	Mr M Pruscino
Solicitors for the Applicant:	Ms K Li, HIV/AIDS Legal Centre
Solicitors for the Respondent:	Mr J Fyfe, Minter Ellison